People v. Caputo , 44 A.D.2d 572 ( 1974 )

Appeal by defendant from a judgment of the County Court, Nassau County, rendered November 20, 1972, convicting him of attempted burglary in the third degree, upon a guilty plea, and imposing sentence. Judgment affirmed. No opinion. Latham, Acting P. J., Coholan, Christ and Munder, JJ., concur; Shapiro, J.,.dissents and votes to reverse and to remand the case to the County Court for repleading and further proceedings not inconsistent herewith, with the following memorandum: At the time of pleading guilty, defendant was informed by the court as follows: “ There is a possibility of a sentence to a State prison for an indeterminate term, up to four years, a possibility of sentence to a County Jail for up to one year, the possibility of probation for a period of up to five years, a conditional discharge, and there is also a possibility of an unconditional discharge.” As a matter of law, however, the court could not, under the circumstances of this case, place defendant on probation, sentence him to the County Jail or give him either a conditional or unconditional discharge, since defendant admitted his addiction to drugs (Mental Hygiene Law § 81.21, former subd. [d], par. 2; § 81.21, former subd. [e]). Under the statute, the court could only sentence defendant to prison or a rehabilitation program, if available. In this situation, defendant should have an opportunity to withdraw his plea of guilty when it appears that it was given in reliance upon an erroneous statement of law by the court.